HL Deb 20 October 1999 vol 605 cc1100-25

3.18 p.m.

The Duke of Montrose rose to move, That the Bill be referred to the Examiners in respect of Clause 1.

The noble Duke said: My Lords, we have lived with this Bill on and off for a great many months, but for all the simplicity of which the Government were so proud when it was introduced, it can take some time to consider all the possible implications.

My Motion is that the Bill is hybrid in respect of Clause 1, because that is where the Government attempt to create separate classes within the Peers who sit in Parliament. At various other points in the Bill there are other issues which affect the private rights of Members within that class, so the Bill as drafted does not seem to me to answer all the points that are required if it is to avoid this further scrutiny.

Your Lordships will by now be aware of the opinion of Mr Leolin Price QC which has been placed in the Library, supporting this view. I have also heard an opinion from Mr John Lofthouse to the same effect. I hardly need to remind your Lordships that the definition of hybridity that is contained in Erskine May is that hybrid Bills are public Bills which are considered to affect specific private interests in a manner different from the private or local interests of other persons or bodies of the same category. The hybrid procedure is designed to protect private interests from unfair invasion or restriction by legislation passed by the legislature at the behest of the Government or the Executive; that is to say, public Bills—this is a public Bill.

The words of that ruling are those of Mr Speaker Hylton-Foster, given during the proceedings on the Bill for the London Government Act 1963 in the course of a debate in another place. He accepted that the test for deciding whether to refer the Bill to the Examiners was that, if it be possible for the view to be taken that this Bill is a hybrid Bill, it ought to go to the examiners. There must not be a doubt about it".—[Official Report, Commons, 10/12/62; col. 45.]

I suggest that that is the test for this House today: not to make a decision on whether the Bill is hybrid, but to decide if it is beyond doubt not hybrid.

Perhaps the clearest guide on this subject can be found in the report of the Examiners on the Aircraft and Shipbuilding Industries Act 1977. The Examiners noted with palpable regret the erosion of the test for hybridity, which took place due to rulings from other Speakers, but still applied it. The eroded practice allows the Government to choose their own class and, so long as they keep all who are in that class in the Bill and put no one from outside the class into the Bill, they will steer clear of hybridity.

Applying that test, I look at the Bill and it may be prima facie hybrid for two reasons. The Bill in its preamble—and, again, in Clause 1—adopts the expression of "membership of the House of Lords". In the Committee for Privileges on Monday and Tuesday, the Government explained to us, with great patience and perspicacity, that the reason that we are all here is the on-going effect of our Writ of Summons. In that committee, we even heard the assertion by Anson that, in answering a Writ of Summons and in taking a seat, every peerage is perfected.

It has probably not escaped your Lordships that these Writs of Summons, apart from the phrase of nomenclature, are the same and ask for the fulfilment of the same duties and responsibilities, irrespective of the reason or route by which the right to receive the Writ has been achieved. All, instead of just being Peers of the Realm, become Lords of Parliament. This Bill, by wishing to deal with membership of the House of Lords, is dealing with Lords of Parliament, including all the rights and privileges that evolve therefrom.

We are all well aware that from the earliest times in Parliament all Peers are equal. I have had my attention drawn to a statement by the 17th century lawyer, Sir Edward Coke, reiterating that, in the judgment of law any of the … degrees of nobility are peers one with another".

I should like to ask the Examiners to consider that a distinction made between Lords of Parliament during the currency of their Writs of Summons is a condition that is not germane to the Bill. This is not to say that the Government can never consider any distinction between Peers because, on the expiry of the Writ of Summons, we all revert to the class of peerage with which we have been endowed.

The other point on which some hybridity might occur is on the question of the inclusion of the titles of His Royal Highness the Prince of Wales and of the noble Earl, Lord Chester. Those two titles are not hereditary titles; they are titles that are given for life. If the Government wish by such a clause to include His Royal Highness the Prince of Wales and the noble Earl, Lord Chester, it is surely possible that they could then include anyone and make the Bill even more hybrid.

I turn now to the question of private interests. I do not need to detain your Lordships for long because during the Committee stage of the Bill I brought forward an amendment relating to the Lord High Constable of Scotland. I then received letters from the Clerk to the Public Bill office telling me that to introduce an element like this would render the Bill hybrid. Therefore, I take it that the Clerks have ruled that there are private interests involved.

There is one specific element relating to private interests about which I think your Lordships should be aware. By removing Peers from this House at the time of the passage of this Bill, anyone so removed will then lose his or her right to vote in elections until the next register comes into force. The question may seem slightly academic until we consider the fact that we are now facing a by-election in South Kensington and this might affect the rights of several Peers in that regard.

In raising these matters before the House, I am not seeking to be difficult or obstructive. One of the prime duties of this House, as recognised in the Government's White Paper, is that this House has an obligation to review and amend ill considered and badly drafted legislation.

This Bill is one of the most fundamental innovations that has been seen in our constitution for some time. We are all responsible for seeing that it falls within the structure of our historical constitutional processes. If there are any errors or anomalies, it is best for them to be considered now rather than left to litigation after the Bill has become law.

I am merely pointing out that starting from the original Bill, as first presented to this House, there was bound to be an element of hybridity for consideration. I do so supported by expert and constitutional opinion. Therefore, under the rules of the House, the Bill must be referred to the Examiners.

Moved, That the Bill be referred to the Examiners in respect of Clause 1.—(The Duke of Montrose.)

3.30 p.m.

Lord Clifford of Chudleigh

My Lords, it is a pleasure to follow the noble Duke, the Duke of Montrose, in this Motion.

Leading counsel, Leolin Price QC, advises me that the Writ of Summons received by an elected Member of Parliament assures that person of certain "private rights"; namely, to attend, speak and vote in the House of Commons. Our Writ of Summons assures us of the same private rights and this statement has no effect on the findings of the Committee for Privileges which ruled on the amendment of the noble and learned Lord, Lord Mayhew.

Hybridity is concerned with making, in a public Bill, a distinction between the manner in which the Bill affects the private interests of one or more members of a class and the manner in which it affects the private interests of other persons in the same class. I shall be concentrating on further anomalies which render the Bill hybrid, by which it must be referred to the Examiners.

As your Lordships will see, Clause 5 introduces on to the face of the Bill provisions to allow for separate voting rights to be introduced for certain life Peers in the event of a Bill being presented to Parliament extending the duration of Parliament beyond five years. This is fundamentally a hybrid clause. Those Peers who are summoned to this House during the same Parliament which considers measures of extension of the duration of a Parliament will be prevented from voting on this Bill. This is quite clearly applying different treatment to some Peers within the same category when exercising their rights as Peers to vote in this House. On that ground alone, the Bill is hybrid and must be referred to the Examiners.

I would add my concern, and, I hope, the concern of all parliamentarians, about the general principle of changing a fundamental cornerstone of the constitutional arrangements of this country through the mechanism of this Bill. The inclusion of Clause 5 is a classic example of provisions rushed into a Bill without sufficient thought as to their consequences. Clause 5 will, if passed, bring on to the statute book some of the most radical changes to the constitution of the United Kingdom.

It is wholly misguided for such an important safeguard to be placed upon the statute book with so little thought, discussion and consultation as to its consequences. If any constitutional safeguards require further contemplation by wiser counsel, they are those measures which prevent the abuse of Parliament and the potential prevention of the right of the electorate to choose by whom and how it is governed. This clause is one such measure. These rights should not be dealt with in such a peremptory manner. I submit to your Lordships that such a measure should better be considered by the Royal Commission, rather than rushed through in a vehicle such as this Bill.

I turn to Clause 2(1) and 2(2). There is further introduction of hybridity into the Bill under these clauses. The hereditary Peers form part of the category or class of Peers as explained by the noble Duke. The hereditary Peers are affected by this Bill in that the Bill distinguishes the rights of some 90 hereditary Peers from the other hereditary Peers. Those 90 will retain their private rights to receive a Writ of Summons to sit, attend and vote in the House of Lords. The remainder of the hereditary Peers expelled from the House will have such rights removed. There is no way that those who have drafted this Bill can include these distinctions within the Bill without rendering it hybrid. There is therefore a clear difference in the way in which certain members of the hereditary peerage are treated from all other Peers. This renders the Bill hybrid.

The Bill goes on further to distinguish the rights of two hereditary Peers, the noble Duke, the Duke of Norfolk, as hereditary Earl Marshal of England, and the noble Marquess, Lord Cholmondeley, as hereditary successor to the position of Lord Great Chamberlain. The fact that these two Peers are clearly identified in the Bill as receiving completely different treatment, by virtue of their hereditary status, from the other 90 Peers who will be selected by other means, such as that of election, makes the Bill hybrid.

The argument that the Bill distinguishes the offices, rather than the holders of the office, does not apply. The title Earl Marshal of England is hereditary to the noble Duke, the Duke of Norfolk, just as are all his other titles, Arundel for one. The position of Lord Great Chamberlain, while not a hereditary title limited to one Peer, like that of the Earl Marshal, passes nevertheless between three hereditary Peers: the Marquess of Cholmondeley, the Marquess of Lincolnshire and the Earl of Ancaster, who succeed to it in turn by virtue of their hereditary titles alone.

By including these two Peers the Bill cannot avoid treating two Peers within the category of hereditary Peers in a different manner from the rest of the hereditary Peers in three ways. First, they are different from the 90 Peers who retain their place in the House of Lords by other means, such as election. Secondly, they are different from the 90 Peers who will retain their rights as hereditary Peers only for the interim period until phase two of the reform of the House of Lords is introduced. Thirdly, they are different from all the hereditary Peers, as they are retaining their rights as hereditary Peers to sit in the House of Lords, to receive a Summons and to debate and vote in the House by virtue of their position as hereditary Peers, while the Bill seeks to remove such rights from all other members of that category.

Further, the House should note that there are no provisions in the Bill to allow the holders of the great offices of state of Scotland—we have heard this from his grace the Duke—to be treated in a similar fashion to the Earl Marshal and the Lord Great Chamberlain. They are left among the broad mass of hereditary Peers either to be included among the 90 or among the remainder of the hereditary Peers expelled by this Bill. This omission introduces differences between the methods in which some holders of the great offices of state who hold duties to the House of Lords are to be treated, and thus, on its own, renders the Bill hybrid.

The Scottish offices relate to duties to the House of Lords as part of the Parliament of the United Kingdom. These duties do not arise out of their relationship to Westminster; nor do they refer to the Scottish Parliament currently in Edinburgh. The legal position is such that, if Parliament were to be summoned to sit in Scotland, the duties to the House of Lords summoned there would be carried out by those who hold the offices of state in Scotland, such as the Lord High Constable of Scotland, and the noble Earl, Lord Erroll. They would not be carried out by the Earl Marshal or the Lord Great Chamberlain. There must be reflection of this within the Bill. The fact that there is not renders the Bill hybrid.

Your Lordships' House will also be aware that the Clerks considered amendments proposed by the noble Lord, Lord Pearson of Rannoch, which introduced a specific allocation of Peers relative to different parties within the House. They found that this affected the private interests of some hereditary Peers and advised that the Examiners would have to consider the Bill in the light of this amendment. The noble Lord, Lord Pearson, withdrew the amendment so it has not had to be referred to the Examiners, but, in the light of such a finding, it is clear that the effect of the clauses which I have mentioned is to render the Bill similarly hybrid.

I turn to Clause 7. If the argument is raised that certain elements of the Bill's hybridity can be drained away by providing that the identification of those treated differently—that is to say, the 90 Peers and the Earl Marshal and the Lord Great Chamberlain—be made by statutory instrument or some other device, I would submit to your Lordships that, first, the statutory instrument is itself a form of legislation and is therefore subject to the rule of hybridity. Secondly, it is not possible to change the character of a Bill by an instrument which is not legislative in character, for example, through the Standing Orders of the House of Lords. Your Lordships' House will recall that it has determined that any affirmative statutory instrument should be subject to the Private Bill procedure. It has resolved that it has unfettered freedom to vote on any subordinate legislation submitted for its consideration. It is entirely proper for your Lordships' House to exercise its rights with regard to these measures.

Clause 7(4)(b) provides that the statutory instruments under this section are to be introduced as negative instruments. Given that this Bill is hybrid, it has to go through the affirmative procedure for statutory instruments. This should be reflected on the face of the Bill. It is to be hoped that, on a matter of such constitutional importance, the Government will not seek to impose any statutory instruments through the negative procedure and that this clause should therefore be amended.

The terms of Clause 7(4) are enormously wide. The notion that an order may modify the effect of any enactment or any provision made under any enactment gives the Secretary of State in effect unprecedented powers to change pieces of legislation. This has only been done once before, in Section 51(1) of the Firearms (Amendment) Act 1999.

There is also a desire to provide "not counting in the 90" treatment for exceptions who are members of the Privy Council, 28 of whom are hereditary Peers. The appropriateness of that is a matter of judgment. If adopted, it too would add another element of hybridity.

Your Lordships will be aware that one of the functions of this House is as a balance against the over-extension and abuse of power by another place. This Bill introduces some far-reaching changes into the constitution which have perhaps not been fully grasped by your Lordships. It does so in a Bill which I submit is hybrid, and for which the proper course is submission to the Examiners.

The Earl of Dundee

My Lords, the Motion in the name of my noble friend the Duke of Montrose is confined to Clause 1 of the Bill. It does not seek to undermine the Bill, nor does it set out to undermine the Weatherill amendment within the Bill. If my noble friend's Motion were now to be referred to the Examiners, one of two different outcomes would result before Third Reading. First, if the Examiners ruled that Clause 1 was not hybrid, then no amendment would be required to Clause 1 as it is currently drafted. Secondly, if the Examiners ruled that Clause 1 was hybrid, then the Government could introduce at Third Reading an amendment to address and resolve the elements of hybridity.

Two other inferences follow from this consideration of how the process of referral would work. First, Clause 1 of the Bill can only benefit from now being referred to the Examiners. Before Third Reading the Examiners will either give the reassurance that Clause 1 is in order or else, by ruling otherwise, alert the Government to resolve the elements of hybridity at Third Reading. Secondly, the only way in which Clause 1 stands to suffer is if it were not now to be referred to the Examiners. The reason is very simple. If Clause 1 of the Bill becomes a section of an Act without referral to the Examiners, the allegation will continue that it was hybrid in the first place. Consequently, Clause 1 of the Bill will not command respect. If we wish it to do so, and if we wish to co-operate with the Bill and the Weatherill amendment within it, we should refer Clause 1 to the Examiners today.

Lord Richard

My Lords, I listened with great care to the speeches made by the noble Duke, the Duke of Montrose, and the noble Lord, Lord Clifford of Chudleigh. I was very interested indeed, in anticipation, to think what it was they were going to say.

It is much too late for this issue to be raised. We are not only at the 11th hour but at the 55th minute of the 11th hour—with Third Reading scheduled for next Tuesday—when, suddenly, along come the noble Duke and the noble Lord with an allegation that it is a hybrid Bill and that therefore proceedings should stop. The noble Lord, Lord Clifford of Chudleigh, even said that insufficient time, consultation and discussion had been given to these issues. The issues have been throttled to death—not over the past five years but some would say over the past 18. The idea that somehow or other there is anything new to be said about the reforms of your Lordships' House, as proposed by the Government, strikes me as fanciful.

As I understand it, this is not a judicial proceeding. It is a decision that the House has to take as to whether the Bill is hybrid. If the House takes that view, then the Bill goes to the Examiners. At the beginning of the Bill this issue was raised; at various stages during the passage of the Bill this issue was raised. It has been debated by the House now on a number of occasions. With great respect to noble Lord, to turn up now and to give us a dissertation upon the position of the Earl Marshal and the Lord Great Chamberlain does not help the passage of this legislation.

I am not by nature a suspicious man. Indeed, I look for virtue in all the people I meet and with whom I discuss issues. Were I a suspicious man I should have to say that the thought might just cross my mind that the objective of this exercise is not to put a defective Bill right; it is not to deal with the minority interests of one group or other of a class in the House. It is to delay the legislation yet further. With great respect, I would not be prepared to accept that. Therefore, if it comes to a vote, I hope that the House will reject the two Motions, and by a large majority.

Lord Elton

My Lords, I hope that the noble Lord will find some virtue in me which he may not expect to find. It has not been his past experience, I believe.

There is another extremely important aspect to the issue which has not been touched upon. Your Lordships can take either the advice of my noble friend the Duke of Montrose and consider whether the Bill is definitely not hybrid, or your Lordships can consider what is the purpose of the hybridity procedure. The purpose of the hybrid Bill procedure is to provide for private individuals to protect their individual rights when they are threatened by a piece of legislation which treats others of the same class differently. It is directed to the private interest. For noble Lords—myself included—to stand on the Bill on a matter of private interest is entirely wrong headed. It goes far beyond that.

We are considering the national interest. Any interests that private individuals have should be subsumed in the collective wish. With the greatest respect to my noble friend, the House has devoted a great deal of time to considering the national interest and the collective interests of individual hereditary Peers. My private interest in this matter has long ceased to interest me. I deplore and decry the removal from the nation of a great resource of free wisdom, advice and service—but that is not what the debate is about. The debate is about whether I may join the queue in the Committee Corridor to put my view to the Examiners as to whether I am being defrauded of something which is intrinsically important to me. Even if it was, I should not take that opportunity. The national interest must prevail. That is what we should debate, and it cannot be done through the hybridity procedure.

3.45 p.m.

Earl Ferrers

My Lords, I am not sure whether I agree totally with my noble friend Lord Elton. I have always thought that the Bill was hybrid. I have a great deal of sympathy for the two Motions before the House.

The noble Lord, Lord Richard, says that the procedure is merely a delaying tactic. I do not think it is. If one has a Bill of this nature altering the constitution of the country which has been in place for some 600 years, it is right that Parliament should consider it in all its aspects.

We are all here by virtue of the Writ of Summons. I hope that the noble Lord will say that that was decided the other day. It fell to be decided whether the Writ of Summons was appropriate in the Bill, and the Law Lords decided that it was appropriate. I congratulate the noble Lord the Lord Advocate on his, as usual, very skilful portrayal of, no doubt, a very good case. I was also glad that he did not follow the example of footballers by going around throwing his hands in the air and saying "Aren't I clever", or of Formula 1 racing drivers by squirting champagne over everyone. He used his normal dignity, which was very agreeable. It is a pity that others do not follow his suit in that respect.

It is a great pity that the noble Baroness, Lady Jay, could not come out with something a little more encouraging. She said: This whole exercise has been an expensive charade. The committee should never have been asked to hear the case, but the Tories have abused their majority in the House of Lords to force it through". With the greatest respect to the noble Baroness's position as the Leader of the House, she was quite wrong. There was a degree of very severe apprehension contained in the question about the Writ of Summons. Many people considered that it was wrong. It was quite right that the Committee for Privileges should have discussed the matter. It was quite right that it should come to the conclusion that it did. Everyone therefore was satisfied. One was always taught to be a good loser. I wish the noble Baroness would be a good winner. No one was trying to destroy the Bill; all we wanted to know was that the Bill was right.

Here we go again on this Motion. We are all here by virtue of the Writ of Summons. Like my noble friend the Duke of Montrose, I return to the Aircraft and Shipbuilding Industry Bill, in which I participated a little. The Examiners decided that that Bill was hybrid because some ship repairing industries were being nationalised and others were not. Those which were being nationalised said, "This is not fair. We are being nationalised." Those that were not being nationalised said, "This is not fair because those which are being nationalised will have a whole lot of public money and we will not." Therefore there was a dispute over a single category of people. It was decided that the Aircraft and Shipbuilding Industries Bill was therefore hybrid.

We are in a very similar position with this Bill. We are all here by a Writ of Summons. The writ lasts for the lifetime of a Parliament, as everyone knows. One gets a Writ of Summons; one comes to your Lordships' House. The writ has done its job and you are here. If the noble and learned Lord the Lord Advocate were kind enough to ask me to stay with him in Wales—he has not actually done so but it is an invitation to which I look forward with heady anticipation—

Viscount Cranborne

The Attorney-General.

Earl Ferrers

The Attorney-General. I do apologise. The noble and learned Lord the Attorney-General.

The Attorney-General (Lord Williams of Mostyn)

My Lords, I do not live in Wales.

Earl Ferrers

My Lords, that is terrible. The Attorney-General does not live in Wales. I suppose he has crossed the border to find more lucrative employment elsewhere.

When he does return to his native land, and if he should invite me to stay with him, which I shall accept with alacrity, I will go to Paddington and buy a ticket with him. Of course the noble and learned Lord will travel first class so I will be obliged to do the same. It would be quite rough if I was thrown off the train at Swindon while the noble and learned Lord the Attorney-General went on to Cardiff. My ticket would entitle me to remain on the train right through to Cardiff and it would be wrong to be thrown off at Swindon. But that is exactly what is happening in relation to the Bill. Certain hereditary Peers have come to this place and have subjected themselves to the Writ of Summons which allows them to attend through the lifetime of a Parliament. Then suddenly the Government say to those Peers, "Oh no, you lot get tipped off halfway through, while others of you are permitted to stay". I should have thought that was a classic example of hybridity.

That is my view, but I am not a lawyer or anything like as grand as an Examiner. For that reason, I shall defer to all of them. However, there are those who feel that this is a matter that ought to be examined, and indeed my feelings run firmly in support of the noble Lord, Lord Clifford of Chudleigh, and the noble Duke, the Duke of Montrose. But there is a snag, and the snag is that time is short. If the matter were to be referred to the Examiners, people would need time to prepare their cases and there would be a delay. The Bill would overshoot the end of the parliamentary Session. Others would not understand what is happening, and the noble Baroness the Leader of the House would—

Noble Lords


Earl Ferrers

—Bushwhack, to repeat the word used by my noble friend Lord Cranborne, hereditary Peers for having interfered with the Government's programme. Those outside the House would not understand what was going on. However, even if that could be overcome, once the Bill had overshot the parliamentary Session the Government would say, "All right, we shall deal with that by bringing forward the present Bill under the Parliament Act without the Weatherill amendment". We would get nowhere.

It is my conclusion, even though I regret it because my natural feelings are with the two noble Lords who have put forward the Motion before us, that for those reasons it would not be wise to submit this to the Examiners. Although I think it deserves to be submitted and my heart goes with them, I shall not be able to support my noble friend and the noble Lord, Lord Clifford.

Viscount Bledisloe

My Lords, I entirely agree with the noble Lord, Lord Richard, that these Motions have come before us far too late, not merely for the practical reasons just advanced by the noble Earl, Lord Ferrers, but because of a matter of basic principle.

Noble Lords should bear in mind one important fact: the practice of referring Bills which are thought to be hybrid to a Select Committee is a matter of the practice of the House and not a matter of basic law or statute. Thus the House can always decide that, although a Bill appears to be hybrid, it is not to be referred to a Select Committee but is to be dealt with in the same way as an ordinary public Bill.

If it was thought by anyone that the Bill before us was hybrid in its original form, it has been open to that person to move that fact ever since the Bill received its Second Reading in the other place 10 months ago. If anyone thought that the Bill was not hybrid originally but became hybrid by reason of an amendment such as the Weatherill amendment, it has been open to them to move that ever since the amendment was passed over five months ago. Neither of those actions have been taken until today. Instead, the House has proceeded, even though it is clear that hybridity has been mentioned at every stage.

The noble Earl, Lord Ferrers, has said in all frankness that he has always thought the Bill was hybrid. For that reason, it has always been open to him to move a Motion to that effect. However, instead of any Motion for referral being brought forward, the Bill has, as the noble Lord, Lord Richard, said, been considered at some length during its subsequent stages. Because the House went on with its consideration of the Bill, notwithstanding the fact that hybridity was in the air, in my view it is absolutely clear that the House has decided by implication that it wishes to proceed with the Bill in the normal way it would proceed with a public Bill, regardless of the question of hybridity. It is far too late to change that now and these Motions should therefore be rejected.

Like many of your Lordships, I consider this to be a mistaken and a bad Bill. I have always considered that it was wrong to introduce a measure that dealt only with abolition without any proposals of what should be put in its place. I venture to suspect that in the hidden closets of their homes, members of the Government may now share that view, although I am not optimistic enough to expect the noble Baroness the Leader of the House to confess that when she comes to reply. But whatever view one has of the Bill, surely it is wrong to suggest that this House should misuse the procedures of the House by introducing Motions of this kind at this late stage to get rid of or to embarrass a Bill merely because one heartily dislikes it.

Lord Goodhart

My Lords, Motions have been moved with obvious sincerity and conviction by the noble Duke, the Duke of Montrose, and the noble Lord, Lord Clifford of Chudleigh. It is a matter of courtesy to consider their arguments, even if one does not believe in them.

The noble Duke referred to the definition of hybridity in Erskine May, and I shall not repeat it. I say only that I find it impossible to see how anything in the Bill falls within the definition. For one thing, I do not believe that any Member of your Lordships' House has a private interest in that membership. In legal theory, I believe that attendance in your Lordships' House is a duty rather than a right. That is certainly the wording used in the Writ of Summons, which is a command and not an invitation.

It is also a recognised fact that Members of your Lordships' House who are unable to attend for a long period of time are supposed to ask for permission to be absent. Rights such as the right of access to the Chamber or access to the Voting Lobbies are ancillary to the duty to attend and participate in the work of the House. If that duty is discharged, the ancillary rights fall with it. However, whether participation in the business of the House is a right or a duty, it is plainly not a private interest, but a public one. No Member of your Lordships' House has a proprietary interest in the right or duty, whichever it may be, to sit here.

I believe the contrary was suggested by the noble Lord, Lord Clifford of Chudleigh, but in my view that is not a sustainable argument. Those who attend your Lordships' House by command of Her Majesty are here to perform a public function as members of the legislature and have no private interest in doing so.

Nor do I believe that hereditary Peers and life Peers are simply members of one single and indistinguishable class. There is a clear distinction. That distinction was applied in the Peerage Act 1963 when existing Peers by succession were entitled to disclaim their peerages, but life Peers and hereditary Peers of first creation were not. No one suggested then that for that reason the Bill was hybrid.

The officers of the House have a duty to report to your Lordships' House if, in their view, a Bill is hybrid. That is a duty they must perform when a Bill is introduced. In this case they have not so reported. That clearly indicates that they believe the Bill is not a hybrid measure. The procedure adopted today is undoubtedly technically in order, but if this issue is to be raised, I must respectfully agree with what has been said by the noble Lord, Lord Elton, the noble Earl, Lord Ferrers, and the noble Viscount, Lord Bledisloe. If this point was to have been raised, it could and should have been raised at a very much earlier stage. The fact that it has been raised less than a week before the date fixed for Third Reading suggests that at least one of the motives is to delay and obstruct the further progress of this measure. It is completely wrong at this late stage to try to override the views of the officers of the House and to refer this matter to the Examiners.

4 p.m.

Lord Brightman

My Lords, I agree with every word said by the noble Lord, Lord Goodhart. In my respectful opinion, the Bill is not hybrid. Dare I say that I think it is as plain as a pikestaff that it is not hybrid? I say that because a Peer does not sit in this House in order to enjoy personal rights granted to him. He sits here in order to perform duties imposed on him. The rights which he enjoys as a Member of the House are exclusively to enable him to perform those duties. I say that because Standing Order 20 states: Lords are to attend sittings of the House or, if they cannot do so, obtain leave of absence". That is the fundamental position of a Lord of Parliament. He is here to perform a public duty. I find nothing in Erskine May which says that a Bill is hybrid because it relieves some members of a class from a public duty. The effect of the Bill is that certain Peers are to be relieved of a public duty which is imposed on them. It is a total misconception to speak of a Peer as exercising a right when he sits, speaks and votes. He is not doing so; he is performing a public duty. I therefore respectfully ask your Lordships to take the view that the Bill is not hybrid.

The Earl of Onslow

My Lords, as someone who may or may not be here in a month's time and someone who is not privy to the closet thoughts of the noble Baroness, Lady Jay, I should just like to say that I so completely agree with what the noble Lord, Lord Elton, said. I am here by accident of birth, because my forebears got drunk with either Walpole or Pitt—probably both. I am here because I am summoned to do my duty. If and when Parliament says that I should not be here, then I go. I am not a corner shop in Scunthorpe. I am supposed to be doing my duty to the nation. Whether that duty is good or bad, I leave to your Lordships. But it would be absolutely wrong for us to pretend that we were corner shops in Scunthorpe.

Lord Howie of Troon

My Lords, I am troubled by this debate. Some noble Lords may remember that I and several others proposed amendments to the Weatherill amendment when it was debated in July. We were juggling the figures, I suppose one might say, which were implicit in the Weatherill amendment. We were informed by the Clerk of the House—it was announced in the Chamber—that our amendments were hybrid. I found it difficult to understand how our amendments could be hybrid whereas the Weatherill amendment was not hybrid. So I incline towards the view that there is just possibly a hint of hybridity about this entire episode. I may well be wrong in that respect. But since my amendments were hybrid I have come to that conclusion.

I do not think that that really matters. We are at a late stage of the proceedings on the Bill. We are not actually dealing with constitutional niceties or things like that. We are actually dealing with brute politics. The brute politics are that this House is unbalanced politically—whether or not it is a matter of hereditary or life peerages—and the Bill before us is intended to sort that out in some way. I think that it has been badly handled right from the beginning. There might well have been attempts to reach some kind of agreement between the various parties involved, as was done in 1968. I suggested that at Second Reading some time ago. No one listened then and I dare say that no one will listen now. This is a matter of brute politics. My intention is to vote with the brutes. I shall support the Government.

The Earl of Erroll

My Lords, I find intriguing the way the hybridity argument has been used on both sides. The moment certain amendments are proposed, they are deemed hybrid; the moment Clause 1 is examined, it is not hybrid. The same argument has been used on both sides. I find that awkward. I think that a future Chamber should consider how to define hybridity properly.

I should like to ask one question. If this Motion is agreed to and the Bill fails to pass in this Session, can the Government then invoke the Parliament Act?

The Earl of Liverpool

My Lords, the whole House should be grateful to my noble friend the Duke of Montrose and to the noble Lord, Lord Clifford, for bringing this matter before your Lordships today. It may be late in the day but it has not been resolved fully, although it has been discussed both inside and outside the Chamber.

I should like to query what the noble Lord, Lord Richard, said—that we are being asked today to decide whether the Bill is hybrid. With the greatest of respect to the noble Lord, we are not being asked to do that. We are simply being asked to agree that there is sufficient doubt in the area that we are not competent to say one way or the other and that the matter can be settled only by sending it to the Examiners. Unless we do that, we shall be failing in our duty as the custodians of our constitution.

We must put the matter to rest one way or the other. Future generations will not look kindly on us if we let this matter pass without settling it. If, as the Government claim, they want to be transparent in all their actions, they should not be opposed to seeking to ensure that the Bill reaches the statute book without flaws and immune from recriminations. I support the Motion of my noble friend the Duke of Montrose.

Lord Pearson of Rannoch

My Lords, I shall not detain the House long. I should like to thank my noble friend the Duke of Montrose for introducing his Motion, which I support and to which I address my brief remarks, because it gives me the opportunity to return to the unfinished debate about hybridity which I had with the noble and learned Lord, Lord Williams of Mostyn, on my Amendment No. 11 in our Report stage proceedings on 15th June (at cols. 233–235, 244 and 248 of the official Report). Because I suppose it is just conceivable that some of your Lordships may not instantly recall the details of that debate, which took place rather late at night, I shall repeat very briefly those parts of that Amendment No. 11 which are salient to the question of hybridity.

It proposed to leave all Peers with speaking and attendance rights for the duration of the interim House and to remove the voting rights of all Peers, both hereditary and appointed, except the Bishops and the Law Lords. It then set up four electoral colleges—one for each political party and one for the Cross Benches—to elect 700 voting Peers. Those 700 voting Peers were to be allotted as follows: 240 to the Cross Benches—

The Earl of Onslow

My Lords, will the noble Lord give way? I am sorry to interrupt him. I admire him enormously, but to go back over Report stage arcana to produce a point is to try the patience of your Lordships. I love him dearly, but he is seriously trying the patience of the House.

Lord Pearson of Rannoch

My Lords, with the leave of the House, that must be for the House to decide. What I have to say bears on the issue before us and is relevant to the decision that the House must take.

As I was saying: 200 to Labour; 200 to the Conservatives; and 60 to the Liberal democrats. There would have been no distinction between hereditary or appointed Peers in the electoral colleges or in the allocations to the parties. The appointed Peers would have been put in the same boat (or perhaps the same tumbrel) as the hereditary Peers, and we would all have taken our chance together in the elections to become voting Peers. For the benefit of my noble friend Lord Onslow and others, I shall of course not repeat the advantages of that amendment over the Weatherill amendment.

Your Lordships should be aware, however, that prior to our Report stage debate on 15th June I received no fewer than three memoranda from the Public Bill office, under the signature of no less a personage than the Clerk Assistant, informing me that my amendment, if passed, would render the Bill prima facie hybrid, which would mean that it would have to go to the Examiners. The justification for that contention was contained in the following vital words in all three memoranda. The Clerk Assistant said that the amendment, by including in the Bill a specific allocation to different parties within the House, affects the private interests of some hereditary Peers differently from the private interests of other hereditary Peers". What struck me as most odd about the wording of that memorandum was the singling out of "hereditary" Peers, because hereditary Peers were treated no differently under the amendment than appointed Peers; and although allocations were made to different parties within the House, both hereditary and appointed Peers are of course essentially free to move between parties as they wish, as indeed some do. It was therefore difficult to see how hybridity did in fact bite on that amendment. So I put a few questions to the Government on 15th June (at col. 234), which have not been answered, and should be answered today before we take a decision.

The first question is really the subject of this Motion, which was to ask why the original Clause 1 of the Bill did not make it hybrid. My noble friend the Duke of Montrose has dealt with that point. However, the noble Lord, Lord Williams of Mostyn, replied (at col. 244) that Clause 1 did not hybridise the Bill because it gave all hereditary Peers the same chance. But, I submit, so did my amendment, because it gave all Peers, both hereditary and appointed, the same chance, bearing in mind that membership of parties is not fixed in stone.

I then asked the Minister to explain the significance in the memoranda of singling out only hereditary Peers as causing hybridity in my amendment, and the record shows that he did not attempt to do so. I should be grateful for the Government's answer today. Why did my amendment make the Bill hybrid thanks only to its treatment of hereditary Peers, and not of appointed Peers as well?

The picture is even more confused, because I moved an amendment, Amendment No. 110E, in Committee on 17th May (cols. 43 to 59) which contained exactly the same features as were supposed to render the later amendment hybrid, and nobody said anything about it at all; no memoranda from the Clerk Assistant—

Earl Ferrers

My Lords, perhaps my noble friend will give way. I am sure that he is producing some valid points, but they seem to be way off the subject of the Motion. I think it would be to the agreement of your Lordships if the noble Lord concluded his remarks.

4.15 p.m.

Lord Pearson of Rannoch

My Lords, I am in the hands of the House. I have nearly finished.

The amendment at Report stage contained exactly the same features as the amendment at Committee stage. But I had no memoranda from the Clerks on that, and not a squeak about hybridity from the noble Baroness the Lord Privy Seal when she came to dismiss the amendment (at col. 57). Yet the amendment had been in the Printed Paper office for weeks, and had even missed its turn once on the Marshalled List. So those who were concerned to find fault with the amendment in Committee had plenty of time to do so, but obviously did not think then that it might cause hybridity. This is part of the answer to those who say that it is now too late to introduce the aspect of hybridity. It should have been introduced at Committee stage, but because we did not receive the relevant memoranda and the Government did not produce the point, it was not.

I therefore ask the Minister: what happened to the theory of hybridity between the two stages of the Bill? Why was my amendment hybrid on Report, when it was not hybrid in Committee?

I mention all this to show that the issue of hybridity is not clear-cut, to put it mildly. We have heard many different arguments this afternoon. That is why the Bill should go to the Examiners, as my noble friend suggests. To me, all Peers who have taken the Oath form a single class, and there is nothing that the Government ought to be able to do to get round that simple fact.

Perhaps I may leave the noble Baroness who is to reply with one final and, I trust, rather awkward question. Does not the very word "Peer" mean "equal"—equal with one another, that is? And if so, on that ground alone, does not Clause 1 hybridise the Bill? I support my noble friend's amendment, and I look forward to the Minister's reply.

Lord Mishcon

My Lords, perhaps I may intervene for one moment only to pay a warm tribute from this side of the House to those hereditary Peers who follow the line of the noble Lord, Lord Elton, in this debate.

Lord Strathclyde

My Lords, I suppose the real point behind the speech of my noble friend Lord Pearson of Rannoch is that, had he received the replies to his questions at the appropriate time, we should not have needed to hear them again.

My noble friend the Duke of Montrose put forward his Motion with the quiet integrity and logic that those of us who have come to know him and who value his contributions in the House would have expected.

I share with my noble friend his distaste, and that of many other noble Lords, for this Bill. It is a bad Bill. It is mean-spirited. It is a licence for old-fashioned patronage. It is a backward-looking "Old Labour meets New Establishment" Bill. It was conceived in malice and has been carried through with a lack of grace from start to finish that has greatly disappointed the House. But the issue raised by this Motion is not whether we like the House of Lords Bill, nor whether we want it to become law. The Motion is on the narrower issue of whether the Bill, in respect of Clause 1, should be referred to the Examiners.

I do not believe that that would be a sensible thing to do. I have listened very carefully to my noble friend the Duke of Montrose. I agree with him that there is a clear and obvious injustice in the distinction drawn between life Peers and hereditary Peers. It goes against all the custom of this House—in which all Peers, from the noble Duke himself and the Earl Marshal of England, to those noble Lords who entered the House today are equal. They are all Peers.

But the Government, with their vicious, scornful and distasteful campaign against hereditary Peers—cliché piled on cliché, stereotype on stereotype, falsehood on half truth—have injected a poison into this House. They have destroyed that old balance by which all Peers looked upon each other as equal. That is to their shame. It will be up to them in future to justify their contention that a life Peer has some specific and special democratic legitimacy over and above an hereditary Peer.

But, carefully though I have heard my noble friend the Duke of Montrose, I have to say that my advice is that the Government can draw such a distinction. Otherwise, how in future could a government present legislation on life Peers, along the lines of the provisions of Clause 2 for hereditary Peers, as I have no doubt some government, some day, may wish to do. Noble Lords opposite may well wish to ponder on that ambition.

But even if my advice were wrong, and the advice of the noble Duke were right, what would it achieve, as my noble friends Lord Ferrers and Lord Elton have asked? The government spin doctors would go to work. The half truths and distortions would continue. We should be said to be trying artificially to hold up the Bill, although I know that that is not the intention of my noble friend. This afternoon, the noble Lord, Lord Richard, has already started on that charge. I can almost guarantee that the noble Baroness the Leader of the House will use it once more when she makes her speech.

We will open ourselves further to that line of abuse and attack. We might even give the Government the excuse they crave to remove Clause 2 and introduce the full horror of a wholly appointed House of Lords. I do not think that would be wise.

The same considerations apply even more to the Motion in the name of the noble Lord, Lord Clifford of Chudleigh. He asks for the clause that has come to be known as the Weatherill amendment to be referred to the Examiners. What would that achieve? If the Examiners found that the clause was not hybrid, we should be where we are today. If the Examiners found that the clause was hybrid, would not the recourse for the Government be to drop the clause and impose their quango-Bill for the House of patronage?

The House voted overwhelmingly for the Weatherill clause, new Clause 2, as making a bad Bill better. Today I see no reason to revise that judgment. I am therefore opposed to the reference of the clause.

Some of your Lordships may think that a finding that the Bill was hybrid would make it impossible to use the Parliament Acts. I am advised that that is not the case. A declaration from the Examiners that the Bill was a hybrid Bill would not prevent the Government re-introducing the Bill next year under the Parliament Act. That was the case in 1976–77 when the Aircraft and Shipbuilding Industries Bill was re-introduced under the Parliament Acts, even though it was a hybrid Bill. The hybrid Bill procedure and the Parliament Acts procedure are separate; they do not interrelate and no one who votes for this Motion should do so because they think it will frustrate the darkest purposes of the Government.

To return to the Motion in the name of my noble friend the Duke of Montrose, I much admire him and hope that the House will long have the benefit of his wisdom. But I regret intensely that I cannot support him today. I also cannot advise my noble friends to do so. But neither will I oppose a Motion that he has put forward with such integrity and which, unlike the Motion of the noble Lord, Lord Clifford of Chudleigh, touches on a matter on which the House has not yet resolved. The question of a reference of Clause 1 is ultimately a matter for the whole House to determine, although for my part, I and my colleagues on the Front Bench will abstain if my noble friend tests the opinion of the House.

One last word: if the intention is to prevent this Bill from becoming law, it should not be done indirectly through use of the hybrid Bill procedure, a device that will not work to that end. If that is the preferred option of noble Lords, it is better to go for an open kill, at Third Reading, on Bill do now pass, or when the House considers the reasons sent to us from another place. That is when the House must finally determine the rights and wrongs of the Bill. I believe that it is on those debates that noble Lords who oppose or support the Bill should concentrate their energies.

For those reasons, I cannot, regrettably, support my noble friend, but I very much look forward to further vigorous debate at Third Reading.

4.22 p.m.

The Lord Privy Seal (Baroness Jay of Paddington)

My Lords, in the interests of good grace, which we have heard expressed considerably this afternoon, I welcome the underlying points which the noble Lord, Lord Strathclyde, made about the specific Motions before us. We have heard from several places around the House distinguished and authoritative legal opinions on the points put forward; legal opinions which I think it is true to say were all in favour of rejecting the Motions. The House may be interested to know—and to some extent it is relevant to this afternoon's proceedings—that the Privileges Committee has just ruled in favour of the Government on the second reference on the Scottish Peers. The House will be aware that two days ago the Privileges Committee unanimously rejected the earlier reference on Clause 1.

However, even that resounding defeat for the opponents of the Bill had some spurious legitimacy as a unique process, which this afternoon's proceedings do not. The noble and learned Lord, Lord Mayhew, argued that because there was no legal method for deciding a point of peerage law before the Bill was passed by Parliament, the Committee for Privileges should be invoked. I did not and do not agree with that argument, but at least he was invoking extraordinary procedure machinery to test it.

In the case of the Motions before us today, there is a routine machinery for testing hybridity in a Bill. That machinery has already been invoked, as several noble Lords said this afternoon, and the Bill has been judged not to be hybrid. For those reasons, although I hope to be able to respond to the noble Lord, Lord Pearson of Rannoch—and one must with courtesy respond to some of the points made by the two movers of the two Motions—I do not think it is necessary to reply in great detail to some of the points raised.

Let me just set out for the House how the system routinely operates and how it has operated on the Bill. There is a machinery in place for considering whether a Bill is prima facie hybrid. It works, whether or not a noble Lord seeks to refer a Bill to the Examiners. A Bill is considered by experts in such subjects as a matter of normal course of events in the process of its passage through the House and at each stage of that passage in relation to each amendment. The experts considered the Bill when it was first brought from the Commons, so they will have looked at the effects of Clause 1 then. They will have considered each amendment as it was tabled, including Clause 2(2).

I remind noble Lords how this works in relation to some points raised by the noble Lord, Lord Pearson of Rannoch, on his amendments. I take issue with his concern that he was not answered appropriately at the earlier stages, but without wishing to delay the House, I shall outline some of the points because they were relevant.

At Report stage, as the noble Lord told the House this afternoon, he was informed that he had been told that his amendment would be likely to be hybrid on a prima facie basis. He then sought guidance from the Government as to why his amendment might make the Bill hybrid while the Bill itself was not, as he explained. My noble and learned friend the Attorney-General explained it thus. The Hansard reference is the same as the one the noble Lord, Lord Pearson, gave us. Perhaps I may quote briefly from my noble and learned friend the Attorney-General: Clause 2 gives all hereditary Peers the same chance. It does not specify any division. The amendment in the name of the noble Lord, Lord Pearson, gives Tory Peers a different chance of continuing membership from Labour Peers. The Earl Marshal and the Great Chamberlain are in a class of their own. It is, I readily concede, quite a small class, but it is in fact a class which is treated equally within itself. The same is true of Clause 1 in relation to all hereditary Peers".—[ official Report, 15/6/99; col. 244.] As several noble Lords have emphasised this afternoon, the key point about determining whether a Bill is hybrid is whether it affects the private interests of some person differently from the private interests of some other person in the same class. The last four words are absolutely crucial. Setting aside the issue of whether the Bill deals with private interests at all—a point rightly referred to by the noble Lords, Lord Elton and Lord Goodhart, and others—the Bill is not hybrid because it does not discriminate between members of individual classes. A class does not need to include everyone who could be included in another class of which it would be a subset. So, for example, Clause 1—the subject of the noble Duke's Motion—applies to all hereditary Peers. They, as we all know only too well, are a class on their own. I do not believe anyone in the House disputes that; indeed the whole thrust of our debate so far has been based on how they have special characteristics and are unique a group of citizens. A Bill which applies to all of them cannot, on that account, be hybrid.

The fact that a different class of Peer could be created which would include life Peers is frankly immaterial. For example, the 1963 Act allowed only for hereditary Peers to disclaim their titles. But no one suggested it was hybrid on that account.

The noble Lord, Lord Clifford of Chudleigh, seeks a reference in respect of Clause 2(2). That is the clause which specifies that 90 hereditary Peers may be excepted, the so-called Weatherill amendment. The first part of that clause is not hybrid because neither it nor Clause 2(1) specifies who the 90 are. All hereditary Peers are to be covered by it. The reference to the Earl Marshal and the Great Chamberlain is, of course, to two hereditary office holders. As my noble and learned friend the Attorney-General explained to the House, they are a class in their own right.

My noble and learned friend acknowledged that it was a small class but it is nevertheless a legitimate one, and for that purpose one is enough. The Public Bill office automatically considered the amendment when the noble Lord, Lord Weatherill, tabled it, in the same way as it considered the amendment tabled by the noble Lord, Lord Pearson of Rannoch (to which I have already referred), and several others, most notably those in the name of the noble Lord, Lord Coleraine.

Lord Pearson of Rannoch

My Lords, the noble Baroness is gracious to give way, but she still has not answered the question why, at Report stage, Amendment No. 11 was prima facie hybrid when at the previous Committee stage exactly the same amendment, Amendment No. 110E, was not considered to be hybrid.

Baroness Jay of Paddington

My Lords, I do not seek in any way to be unhelpful, but I believe that the matters raised by my noble and learned friend the Attorney-General, which I rehearsed, cover the point. If the noble Lord is still unhappy about it, perhaps it is better to deal with it in a forum other than this debate. But I assure him that the points then made in response by my noble and learned friend were adequate.

I say to the noble Lord, Lord Pearson of Rannoch, and other noble Lords that I have decided it is appropriate in this instance to quote from the advice given by the House authorities. The advice is not related specifically to the amendments of the noble Lord, Lord Pearson of Rannoch. The advice is as follows: In my view, it is not prima facie hybrid. The new clause [Clause 2] is drafted to empower the House to except up to 92 hereditary Peers from the provisions of Section 1 … The exceptions will be provided for in Standing Orders of the House and do not arise directly from the amendment. Apart from subsection (2), the amendment does not specify those who will be excepted and therefore there is no hereditary Peer who would have a locus to petition. Subsection (2) of the new clause, however, names the Earl Marshal and the Lord Great Chamberlain. This does not hybridise the Bill because the two named Peers constitute a genuine class". Although this is slightly repetitious, I restate the following to confirm that this is the official advice: They are hereditary Peers who by virtue of their peerage hold offices of State which have specific duties and responsibilities within the House of Lords". I have gone into some detail—I suspect rather more than the patience of the House would prefer—in order to put on record precisely the points that my noble and learned friend the Attorney-General made in reply to debate. Without impugning the motives of some noble Lords who have taken part in the debate this afternoon, I suspect that we are spending time on matters that have already been discussed at great length and we would better spend our time on the important legislation which is set down for debate for the remainder of today. The questions raised by the noble Lords have already been carefully considered both in debate and by the appropriate House authorities.

Although the noble Earl, Lord Ferrers, seeks to patronise me on the question of manners and grace, I am bound to tell the House that on this Bill I represent and lead for the Government. The Government feel very strongly, as do my Back-Benchers, that we have wasted a great deal of time.

Earl Ferrers

My Lords, the noble Baroness will recall that she is also Leader of the whole House—Conservatives, Labour, Liberals and Cross-Benches.

Baroness Jay of Paddington

My Lords, I do. However, I am also a government Minister, and in this instance my government ministerial responsibilities are paramount. I hope that the noble Earl will take my remarks as a reflection of the degree of feeling on this side of the House about the way in which some of these matters have been conducted. In the United States an American commentator some time ago coined the phrase "clinging to the furniture". In that instance he was describing the attempts by President Nixon to hold on to office in the White House in the face of overwhelming political and legal opinion. That is not a phrase that is much used in this country. But there are some noble Lords on this side of the House whose patience is becoming stretched on some of these Motions. As the noble Lord, Lord Strathclyde, said, this situation must be resolved politically and by the whole House. I urge the House to reject these two Motions.

The Duke of Montrose

My Lords, first I thank the noble Lord the Leader of the Opposition for his kind words. However, I take issue with the Leader of the House. The question of hybridity has arisen in this House on a number of occasions, but it has never been fully discussed until today. I am most grateful to all noble Lords who have taken part in the debate and expressed their views.

When I first became involved in this Bill—the accusation has been thrown at me, as I knew it would, that this is rather a late stage at which to bring the matter up—I did not seek to raise the issue of hybridity. However, I find myself in the same position as the noble Lord, Lord Howie of Troon. When I tabled an amendment I received a letter from the Clerk of Public Bills which said that if my amendment were accepted it would make the Bill hybrid. According to my first understanding of the Bill, I believed that my amendment would make it less hybrid. I then began to gain an understanding as to what parliamentarians regarded as hybridity. To some extent, that is my excuse for bringing up this matter rather late in the day.

Reference was made to the time remaining. Noble Lords will be aware that there are three weeks left of the present Session. One of the difficulties in moving this Motion is that, according to the Clerks, there is a lack of precedence as to how a referral for hybridity should be considered. My understanding is that it should be fairly easy to wrap it up in a couple of weeks, if not less.

Another question was raised about our interest in private rights. Any private rights that I may have here are not matters that feature largely in my life. However, I refer back to the letter from the Examiners which speaks of the danger of hybridity. From that, I take it that the Examiners have ruled that there are private rights. It is not a question of whether I or anybody else wants those private rights, but a whole class of people is being deprived of them.

I accept that this is very much a political Bill and that it has been the subject of much debate in many political circles. It is, however, also a constitutional Bill which directly affects Parliament, and it is as parliamentarians taking part in the constitution of this country that we consider this measure today. It is entirely right that the procedures of the House should be adhered to and that potential legislation, particularly that affecting the constitution, should be rigorously examined to ensure that any flaws are removed and that that which passes on to the statute book is well considered and constructed legislation. I intend to press my Motion and seek the opinion of the House.

4.37 p.m.

On Question, Whether the said Motion shall be agreed to?

Their Lordships divided: Contents, 85; Not-Contents, 214.

Division No. 1
Ailsa, M. Lauderdale, E.
Ashbourne, L. Leigh, L.
Balfour of Inchrye, L. Lindsey and Abingdon, E.
Banbury of Southam, L. Liverpool, E.
Belhaven and Stenton, L. Long, V.
Biddulph, L. Merrivale, L
Blyth, L. Monk Bretton, L.
Boardman, L. Monro of Langholm, L.
Braybrooke, L. Montrose, D.
Cadman, L. Morris, L.
Clark of Kempston, L. Moyne, L.
Clifford of Chudleigh, L. [Teller] Munster, E.
Clinton, L. Napier and Ettrick, L.
Clitheroe, L. Naseby, L.
Coleraine, L. Nathan, L.
Coleridge, L. Nelson, E.
Cox, B. Newall, L.
Cross, V. Nickson, L.
Davidson, V. Norrie, L.
Denman, L. Nunburnholme, L.
Donoughmore, E. Patten, L.
Dudley, E. Pearson of Rannoch, L.
Dundee, E. [Teller] Rees, L.
Ellenborough, L. Rennell, L.
Elles, B. Renwick, L.
Erroll, E. Rodney, L.
Exmouth, V. Rowallan, L.
Saint Albans, D.
Fisher, L. St. Germans, E.
Forester, L. St. John of Fawsley, L.
Forsyth of Drumlean, L. Saltoun of Abernethy, Ly.
Gainford, L. Sharples, B.
Gardner of Parkes, B. Strange, B.
Glenarthur, L. Sudeley, L.
Gray, L. Suffield, L.
Haddington, E Teynham, L.
Hambro, L. Torphichen, L.
Harmar-Nicholls, L. Torrington, V.
Harrowby, E. Wedgwood, L.
Hemphill, L. Weir, V.
Holderness, L. Westbury, L.
Ironside, L. Wise, L.
Kinnoull, E. Wynford, L.
Ackner, L. Bragg, L.
Acton, L. Brentford, V.
Addington, L. Brett, L.
Ahmed, L. Bridges, L.
Alderdice, L. Brightman, L.
Allenby of Megiddo, V. Brooke of Alverthorpe, L.
Alli, L. Brookman, L.
Alton of Liverpool, L. Brooks of Tremorfa, L.
Amos, B. Bruce of Donington, L.
Annan, L. Burlison, L.
Archer of Sandwell, L. Burns, L.
Ashton of Upholland, B. Carlisle, E.
Avebury, L. Carnarvon, E.
Bach, L. Carter, L. [Teller]
Baldwin of Bewdley, E. Castle of Blackburn, B.
Barnett, L. Chandos, V.
Bassam of Brighton, L. Charteris of Amisfield, L.
Bath and Wells, Bp. Chorley, L.
Berkeley, L. Christopher, L.
Blackstone, B. Clarke of Hampstead, L.
Bledisloe, V. Cledwyn of Penrhos, L.
Borrie, L. Clement-Jones, L.
Bradshaw, L. Clinton-Davis, L.
Cocks of Hartcliffe, L. Longford, E.
Crawley, B. Macdonald of Tradeston, L.
Croham, L. McIntosh of Haringey, L.
Currie of Marylebone, L. [Teller]
David, B. McIntosh of Hudnall, B.
Desai, L. Mackenzie of Framwellgate, L
Dholakia, L. Mackie of Benshie, L.
Dixon, L. McNair, L.
Donoughue, L. McNally, L.
Dormand of Easington, L. Maddock, B.
Drogheda, E. Mallalieu, B.
Dubs, L. Marsh, L.
Ebury, L. Mason of Barnsley, L.
Elder, L. Merlyn-Rees, L.
Evans of Parkside, L. Methuen, L.
Evans of Watford, L. Miller of Chilthorne Domer, B.
Ezra, L. Milner of Leeds, L.
Falconer of Thoroton, L. Mishcon, L.
Falkland, V. Molloy, L.
Farrington of Ribbleton, B. Monkswell, L.
Faulkner of Worcester, L. Montague of Oxford, L.
Filkin, L. Montgomery of Alamein, V.
Gale, B. Morris of Manchester, L.
Geraint, L. Murray of Epping Forest, L.
Gilbert, L. Newby, L.
Gladwin of Clee, L. Nicol, B.
Glanusk, L. Ogmore, L.
Goldsmith, L. Onslow, E.
Goodhart, L. Orme, L.
Gordon of Strathblane, L. Patel, L.
Goudie, B. Peston, L.
Gould of Potternewton, B. Phillips of Sudbury, L.
Graham of Edmonton, L. Pitkeathley, B.
Grantchester, L. Ponsonby of Shulbrede, L.
Gregson, L. Porter of Luddenham, L.
Grenfell, L. Puttnam, L.
Hacking, L. Ramsay of Cartvale, B.
Hamwee, B. Randall of St. Budeaux, L.
Hanworth, V. Razzall, L.
Hardy of Wath, L. Rea, L.
Harris of Greenwich, L. Redesdale, L.
Harris of Haringey, L. Rendell of Babergh, B.
Hayman, B. Rennard, L
Hilton of Eggardon, B. Richard, L.
Hogg of Cumbernauld, L. Rodgers of Quarry Bank, L.
Hollis of Heigham, B. Rogers of Riverside, L.
Holme of Cheltenham, L. Roll of Ipsden, L.
Hooson, L. Russell, E.
Howie of Troon, L. Sainsbury of Turville, L.
Hoyle, L. Scotland of Asthal, B.
Hughes of Woodside, L. Sefton of Garston, L.
Hunt of Kings Heath, L. Serota, B.
Hutchinson of Lullington, L. Sharp of Guildford, B.
Hylton, L. Shaughnessy, L.
Hylton-Foster, B. Shepherd, L.
Irvine of Lairg, L. (Lord Sheppard of Liverpool, L.
Chancellor) Shore of Stepney, L.
Islwyn, L. Simon, V.
Janner of Braunstone, L. Slim, V.
Jay of Paddington, B. (Lord Smith of Clifton, L.
Privy Seal) Smith of Gilmorehill, B.
Jenkins of Hillhead, L. Stallard, L.
Jenkins of Putney, L. Stone of Blackheath, L.
Judd, L. Strabolgi, L.
Kennedy of The Shaws, B. Symons of Vernham Dean, B.
Kennet, L, Taverne, L.
Kilbracken, L. Taylor of Blackburn, L.
King of West Bromwich, L. Taylor of Gryfe, L.
Kinloss, Ly. Thomas of Gresford, L.
Kintore, E. Thomas of Gwydir, L.
Laming, L. Thomas of Walliswood, B.
Lea of Crondall, L. Thomson of Monifieth, L.
Levy, L. Thornton, B.
Lipsey, L. Thurso, V.
Lockwood, B. Tordoff, L.
Lofthouse of Pontefract, L. Turner of Camden, B.
Uddin, B. Whitty, L.
Varley, L. Wigoder, L.
Walker of Doncaster, L. Wilkins, B.
Walpole, L. Williams of Crosby, B.
Williams of Elvel, L.
Warner, L. Williams of Mostyn, L.
Watson of Invergowrie, L. Williamson of Horton, L.
Watson of Richmond, L. Wilson of Tillyorn, L.
Weatherill, L. Woolmer of Leeds, L.
Wedderburn of Charlton, L. Young of Old Scone, B.

Resolved in the negative, and Motion disagreed to accordingly.

4.50 p.m.

Lord Clifford of Chudleigh

My Lords, I thank all those who spoke in response to my particular presentation as regards the hybrid measures. I would like to make one or two brief comments. The noble Lord, Lord Elton, simply does not comprehend sufficiently that a constitution is private. A number of noble Lords quite rightly said—the noble Duke, the Duke of Montrose, has raised this already—that the noble Lord, Lord Howie of Troon, was quite correct in agreeing with me when I presented various questions about certain of the parts of the Bill which, as I have argued, make it hybrid. None the less, having had the opinion of the House on the Motion moved by the noble Duke, the Duke of Montrose, it would be unwise of me to press further. I shall not move my Motion to refer the Bill to the Examiners in respect of Clause 2(2).

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